A recent bankruptcy New York court decision1 highlights a less commonly used option for lenders to take control of troubled real estate projects. The lender obtained relief from the automatic stay to foreclose on membership interests pledged to secure its mezzanine loan instead of foreclosing on its mortgage against the underlying real property.  

Here is the case, and what lenders can learn from it.  

The Case

The Texas Rangers filed for bankruptcy relief in late May, 2010, to break an impasse between the club and its bank lenders, who are owed approximately $550 million and who oppose a planned sale to a group led by Nolan Ryan. The Rangers are owned by Hicks Sports Group, which acquired the club in 1998 and had guaranteed the debt.

A company facing a rash of tort lawsuits may try to use a dormant subsidiary’s bankruptcy as a tool to limit its exposure. That’s what Pfizer tried to do, and a New York bankruptcy judge sent them packing. This case is a warning to corporate parents that courts will not allow them to manipulate the process to use the bankruptcies of subsidiaries to further their own agendas. If you’re a creditor you can use this case as ammunition in reorganization disputes to show bad faith. Read on for a quick summary of what happened in the Pfizer case, and what you can learn from it.  

The Texas Rangers were sold in an August bankruptcy auction to a syndicate headed by former baseball great Nolan Ryan and attorney Chuck Greenberg. The final purchase price was $608 million—nearly $100 million more than the original offer for the team—and is a great example of how lenders can use the bankruptcy process to maximize the value of an asset.

Introduction: Earlier this year, the Third Circuit Court of Appeals' decision in In re Philadelphia Newspapers, LLC[1] sent shockwaves through the secured lending community. In a 2-1 decision, the court held that a debtor can confirm a plan of reorganization while denying the secured creditor the opportunity to credit bid for its collateral if the plan provides the lender with the "indubitable equivalent" of its claim.

The Delaware Court of Chancery has held that under the Delaware Limited Liability Company Act, creditors of an insolvent Delaware limited liability company do not have standing to pursue a derivative claim against the managers of the company.

The Delaware Court of Chancery has granted the plaintiffs' request for judicial dissolution of BVWebTies LLC, a Delaware limited liability company. In the case, co-equal owners and managers of the LLC disagreed over the company's management. The company's LLC agreement, however, provided no method by which to break a deadlock among the members.

The Delaware Court of Chancery has held the seller in an asset purchase transaction liable for breach of an exclusivity provision in the subject asset purchase agreement, dismissing the seller's argument that the fiduciary duties owed by management to creditors negate the contractual exclusivity provision.

A recent bankruptcy court decision, which approved procedures governing upcoming claw back litigation, paves the way for the start of long-feared claw back litigation against investor victims of the Madoff fraud. The claw back suits will seek to recover funds withdrawn from Madoff accounts prior to the revelation of the scheme. Many had hoped that SIPC Trustee Irving Picard might refrain from bringing mass law suits against these so-called "net winners" because of the immense harm such suits will harm to people who have already suffered enormously from the fraud.

A recent decision may provide important ammunition to Madoff investors against "clawback" actions brought by the SIPC Trustee overseeing the Madoff bankruptcy estate (the "Madoff Trustee").1 The Madoff Trustee alleges that investors who withdrew monies from their accounts fraudulently transferred estate property under state and federal law, regardless of whether they lost more than they withdrew.